The Washington PostDemocracy Dies in Darkness

Opinion Criminal prosecution is the wrong idea. Use the 14th Amendment on Trump.

The vandalized statue of Confederate leader Jefferson Davis is seen in Richmond about five hours before it was toppled by demonstrators on June 10, 2020. (John McDonnell/The Washington Post)

Bruce Ackerman is a professor of law and political science at Yale and the author of “Revolutionary Constitutions: Charismatic Leadership and the Rule of Law.” Gerard Magliocca is a professor at Indiana University Robert H. McKinney School of Law and the author of “American Founding Son: John Bingham and the Invention of the Fourteenth Amendment.”

Apart from a relatively brief mention in its 800-page report, the Jan. 6 committee missed the Constitution’s preferred punishment for former high officials turned insurrectionists. The committee tries to persuade Americans that criminal prosecution is the only adequate response to Donald Trump’s systematic efforts to overturn the 2020 election.

Nearly forgotten debates over ratification of the 14th Amendment point to a better, less divisive approach. Nowadays, the amendment is best known for the Section 1 guarantee of “equal protection of the laws.” At the time of the debates in 1868, however, Section 3 — barring insurrectionists from future elected offices — was the hot-button issue.

Section 3 targeted Jefferson Davis, a former U.S. senator who was president of the rebellious Confederacy, along with other leaders of the attempted overthrow of the U.S. Constitution. These men had “taken an oath … to support the Constitution of the United States” before the Civil War, then betrayed their oath by joining in “insurrection” or “rebellion” during the conflict. Section 3 explicitly barred them from holding “any office, civil or military, under the United States” unless “two-thirds of each House” of Congress lifted the ban.

Congressional sponsors of the amendment made clear that they were following the path marked by Abraham Lincoln in his second inaugural address: “with malice toward none, with charity to all.” In the words of Ohio Republican Rep. John Bingham, a leading draftsman, the Disqualification Clause represented “an act of forgiveness on the part of the American people, without a parallel, I undertake to say, in the history of nations.”

This “forgiveness” was a matter of life and death for Davis, who was imprisoned by the Union Army since his capture at the end of the war in 1865. If the 14th Amendment had been rejected, he would almost certainly have been convicted of treason and immediately executed. Yet, as soon as the amendment was ratified, the Army dropped the charges and freed Davis.

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After ratification, Congress quickly passed legislation implementing the amendment. Later Congresses pardoned many ex-Confederates by the requisite two-thirds vote, but Davis remained disqualified until his death in 1889. In Bingham’s words, disqualifying rebel leaders from future offices allowed “the great mass of the population of the Southern States” to retain their full “political powers” by rejoining the Union and leaving the past behind. Though Davis survived to publish an autobiography that helped to advance the Lost Cause myth of the Civil War, the government did not make him a martyr to that cause.

In calling for Trump’s criminal prosecution, the Jan. 6 committee is ignoring the Lincolnian principles embodied in the 14th Amendment. Committee members might also be underestimating the difficulty of a criminal prosecution. Assuming he were indicted, Trump would not face a jury any time soon because his lawyers have demonstrated a remarkable ability to drag out court cases. In the meantime, he would remain free to pursue his ongoing campaign for the White House.

As former president Gerald Ford explained when pardoning his predecessor, Richard M. Nixon, who resigned amid scandal: “During this long period of delay and potential litigation, ugly passions would again be aroused. And our people would again be polarized in their opinions.”

Special counsel Jack Smith and Attorney General Merrick Garland should take a lesson from Ford’s caution, and defer serious consideration of criminal prosecution until the newly elected Congress has a chance to consider the 14th Amendment option mentioned in a single paragraph by the Jan. 6 committee. Legislation already proposed by Democratic Reps. Debbie Wasserman Schultz (Fla.) and Jamie B. Raskin (Md.) would grant special jurisdiction to a three-judge federal court in the District of Columbia to determine, within three months, whether Trump’s involvement in the assault on Capitol Hill amounted to an “insurrection.” The panel’s decision would receive automatic Supreme Court review.

This is urgent business. If Congress does not move quickly to enact the Schultz-Raskin proposal, the issue of Trump’s political future will drag into 2024, when the next election will rev into high gear and courts will be inclined to let the voters decide.

American history is marked by moments of political evasion — as well as moments of genuine courage. Congress, led by Republicans willing to break with their party’s extremists, should bring the Jan. 6 tragedy to a close and enable Americans to set the nation on the road to a post-Trump future.

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